Federalism Rules — Even When It’s Inconvenient [Reader Post]

One of the hardest propositions for conservatives to remain consistent on is the issue of federalism. We believe in federalism. We believe that the Constitution enshrined power to the states through the Tenth Amendment. We believe that that power has been eroded away through the years and want it restored.

The hard reality of our position is that some states may seek to push positions that we believe threaten liberty. Conservatives have lauded efforts by Arizona to protect their borders consistent with federal policies and Missouri’s effort to nullify ObamaCare. But many have blasted California for essentially legalizing medical marijuana and New Hampshire’s effort to block a national ID card.

The hard part about federalism is facing the reality that some states will do things we don’t agree with. We need to learn to support those efforts and remain consistent. Limiting federal power should be our ultimate objective.

Recently a number of states—including some of the nation’s strongest conservative governors– have undertaken an effort to overturn federal restrictions on the states collecting sales tax from the sale of online goods. And they have a point.

Despite our opposition to taxes, this is another example where federalism should triumph.

Constitutionally, the implementation of sales tax falls under the purview of the states—even when we dislike the taxes the states choose to implement. And current law is a clear abrogation of states’ constitutional authority. It is equally clear that In addition to abrogating states’ rights, current law creates a bias towards online retailers like Amazon.com at the expense of Main Street businesses.

Congressman Steve Womack (R-Arkansas) has introduced tax fairness legislation that would allow states to collect sales tax for purchases made online. Opponents argue that Womack’s bill would unconstitutionally require out of state businesses to collect and remit taxes to states with which the business has no connection. This seems like a valid criticism. But even valid criticism of the proposed bill does not justify ignoring and leaving in place the infringement on states rights and the bias caused by current law.

That is why some have begun discussing other ways to fix the problems with current law. Notably, conservative think tank the Competitive Enterprise institute has offered an origin-based model that would return rightful power of the states and avoid the cross state line constitutional issues.

But whatever the final language becomes, the impact should be the same—restrict federal powers and get Congress out of the business of picking winners and losers to let the marketplace sort things out.

norman means

“Opponents argue that Womack’s bill would unconstitutionally require out of state businesses to collect and remit taxes to states with which the business has no connection. ”

Valid criticism? You bet. But this plan is flatly unconstitutional for another reason.

Article I Section 10 of the Constitution reads, in part:

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; [emphasis added] and all such laws shall be subject to the revision and control of the Congress.

Even if Congress passes such a law, which the Constitution WOULD allow, the states may not keep the proceeds of any such tax; as clearly stated above, the proceeds of such tax would need to be remitted by the states to the US Treasury for the use of the federal government, not to their own coffers. An act of Congress cannot waive a Constitutional requirement.

Perhaps a law could be written to return the monies, once remitted, to the states from the federal treasury. How many states would be willing to accept a promise from the federal government not to keep the monies remains to be seen.

Disregarding the Constitution is a far greater threat to our liberty than anything mentioned in your article. Mr. Womack (and others) would be well served taking the time to actually read the Constitution prior to authoring such plans.

Ditto

The problem with discussions of Federalism and the Constitution, is the never mentioned third party of the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As California and New York City under Bloomberg have shown, and Supreme Court Justice Roberts pointed out, The People Need to start taking back for themselves rights and not-granted powers that have been assumed, taken over and expanded by the Feds, the states and local governments. Perhaps it is time for a Sovereign Citizens party.

Aqua

Recently a number of states—including some of the nation’s strongest conservative governors– have undertaken an effort to overturn federal restrictions on the states collecting sales tax from the sale of online goods. And they have a point.

The problem with online sales is the definition of point of origin. I live in Georgia; if I got to Florida and buy a hat, I pay Florida sales tax. If I go online and buy a hat online from a company that is in Florida, do I pay Florida sales tax, Georgia sales tax, both, or no sales tax at all.
Since this is the question, it becomes a question of commerce and most certainly falls within the enumerate powers of congress.
Congress just needs to define the point of origin though.